A Will is a legal document that sets forth the wishes of the person making it (the testator) regarding the distribution of property and the care of minor children, if any, after their death, and is the centrepiece to most estate plans. A will is important for succession planning for individuals to ensure that after his/her demise, there are no disputes amongst legal heirs. The Will names an executor who is to been entrusted with the duty to carry out the wishes of the deceased. It also provides the executor(s) with instructions on how the estate should be distributed.
The testator must be of "sound mind" to make a Will, which means that:
A Will should be reviewed from time to time to ensure that it still meets the needs of the testator and that the property will be distributed according to his or her wishes. It is especially important to review a Will on the following events:
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In order to be valid, a Will does not need to adhere to any specific form, or feature certain language. However, the document must disclose the intention of the testator in making dispositions of his or her property to come into effect at death.
A typical Will usually provides that all debts of the estate including taxes should be paid first (although they are payable anyway). It names an Executor, who will be responsible of administering the estate, and then set out the powers of the Executor(s) in administering the estate. Will then sets out any specific assets or properties or money that are to be distributed. Whatever is left after all of the specific gifts have been given and all debts have been paid is called the residue of the estate. A Will should contain a residue clause specifying how the residue should be distributed. For a Will to be formally valid it must be signed by the testator and two witnesses at the same time in the presence of each other.
In India, the Indian Succession Act, 1925, governs the law of succession. However, for some religions, personal laws also come into play in respect of the assets which can be given away through a will. For instance, matters relating to succession and inheritance of a Muslim are governed by Muslim personal laws. The general rule under Muslim personal laws in India is that a Muslim may, by his will, dispose only up to one-third of his property which is left after payment of funeral expenses and debts without the consent of his heirs. Similarly, in case of Indian Christians and Parsis, upon marriage a will stands revoked so needs to be made again.
Further, while it is not necessary to register a will, if it is registered with the Sub-registrar under the Indian Registration Act,1908, it would prevent the same from being challenged after the death of the testator.
Further, the process of writing of the will can also be videographed, and a video recording of the making of will is admissible for evidence under the Evidence Act, 1872.
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